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Photo: iStock

An agreement between entities to bequeath property is not enforceable

Wills are mutual when the testators confer upon each other reciprocal benefits, either disposing of their property to each other or to a third person in a particular mode or manner with reciprocal provisions

My brother-in-law died a few years ago. He is survived by his widow, but they didn’t have any children. They had a small house in Howrah, near Kolkata. My wife is a part legal owner, as they have no other brothers or sisters. As both my wife and her sister-in-law are getting old, they want to make an agreement to the effect that as long as either or both of them are alive, they will enjoy the property. After their demise, they want the property to go to our two children, who actually support their maternal aunt financially. Other than making a Will (which requires a painful process of obtaining probate), can they (the present owners) enter into an agreement to bequeath the property as proposed above? Is that a lawful instrument? Is it required to pay stamp duty to register such an agreement as in the case of conveyance deed?

—B. Datta

For the purpose of my response, I have assumed that your wife and her sister-in-law co-own the house as tenants in common. In the case of tenants in common, on the death of one of them, the share of the deceased does not get vested in the surviving tenant in common but would devolve upon his or her legal heirs. I have also assumed that your wife and her sister-in-law are Hindu; that they have full disposing power over the house; and they both intend that the house should go to your two children following the demise of both of them.

With regard to your query, please note that an agreement to bequeath property would not be enforceable and therefore the entry into such an agreement would not serve their purpose. In view of this, for the house to get transmitted following the demise of both of them, to your two children, they could each consider executing a mutual Will.

Wills are mutual when the testators (i.e., the persons making the Will) confer upon each other reciprocal benefits, either disposing of their property to each other or to a third person in a particular mode or manner with reciprocal provisions. Accordingly, your wife and sister-in-law could execute a mutual Will bequeathing a life interest in their respective half share to the other for life, and on demise of the surviving testator, the share will vest with your two children (on the assumption that the testators hold the house as tenants in common).

The Will (or ‘Wills’ if executed separately) should clearly set out the reciprocal benefits being given and an agreement that neither testator shall have power to revoke it. This is because under a mutual Will, the surviving testator receives benefits from the document and hence is not entitled to revoke the Will after the death of the first testator as it is made in pursuance of the agreement and hope and trust that the Will be adhered to. It is pertinent to note that since the Will takes effect only on the death of the testator, both the testators during their lifetime together may revoke or modify a mutual Will but on the death of one of the testators, the surviving testator is not competent to revoke the mutual Will.

However, probate of the Will, will be required pursuant to the provisions of Section 213 read with Section 57 of the Indian Succession Act, 1925.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.

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